In 1971 and 2006, The New Charters Designed To Keep Embattled Presidents In Power

1-3 MAY 2006
In 1971 and 2006, The New Charters Designed To Keep Embattled Presidents In Power
by RAISSA ESPINOSA-ROBLES

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The PCIJ has just finished a three-part series that looks at the uncanny similarities in the manner in which Ferdinand Marcos and Gloria Macapagal-Arroyo have attempted to change the constitutions prevailing during their incumbency. The series was written by Raissa Espinosa-Robles who, in 1984, wrote a 14-part series on the Marcos constitution for Business Day. Raissa dug up her files again and found transcripts, interviews and speeches that attest to how similar the current situation is to 1971-73, when Marcos managed to ram through a new constitution.
This series compares historical material and transcripts of recent discussions in the Consultative Commission (ConCom) and found the following similarities:

Both the 1973 charter and the one currently being proposed were seen primarily as attempts to save an embattled president and keep that president in power by changing the form of government.

In both, there were sweeteners. In 1972, Marcos offered ConCon delegates who approved the constitution membership in a new National Assembly. In 2006, local officials and congressmen were offered a “no-election” scenario in exchange for their support for the charter.

Both the 1973 charter and the proposed one give the president extraordinary powers not in the preceding constitutions. These extraordinary powers are to be exercised during a “transition period” where the incumbent president assumes the combined powers of president and prime minister.

Both the 1971 ConCon and 2006 ConCom proceedings were marked by last-minute provisions and secret dealmaking with Malacañang. Those who are pushing for charter change now are also the same ones who cooperated with Marcos more than 30 years ago: Jose de Venecia, Jose Abueva, Gilberto Duavit, Alfredo Abueg, Pedro Romualdo and Gerardo Espina Sr.

The 1973 constitution was ratified by hurriedly convened and questionable “citizens’ assemblies,” similar to the ones recently called to certify the people’s initiative for charter change.

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Arroyo's late father, former President Diosdado Macapagal, headed the 1971 Constitutional Convention that produced the constitution that legitimized the Marcos dictatorship. Macapagal said that Marcos grabbed control of the convention by obtaining "the loyal support of certain delegates through the inducement of money, patronage, and other favors in enough number to be able to decisively influence the Convention."
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THE CONSTITUTIONAL convention that met in 1971 was formed because of a growing public perception that the country was in crisis and needed drastic change. There was a clamor for a new constitution, particularly in the light of suspicions that Marcos had cheated and spent heavily in the 1969 elections in order to win a second term.

If businessmen, politicians and student activists all wanted a new charter then, it was because they hoped to curtail the powers of the president and to reform what they thought was a rotten political system. The political opposition, in particular, wanted to block Marcos's attempts to perpetuate himself in power by shifting to a parliamentary form of government.

But Marcos outfoxed his opponents. He managed to subvert the convention into producing a constitution that did precisely the opposite: give him enormous powers and extend his term indefinitely.

The present moves toward charter change echo many of the circumstances that took place more than 30 years ago. Last year, in an effort to save a presidency reeling from allegations of election fraud, President Gloria Macapagal-Arroyo formed a Consultative Commission (ConCom) to "review" the 1987 constitution.

Members of the commission would find out during their trips across the country that many people wanted a new charter mainly to get rid of the present administration. Yet the draft constitution the ConCom has produced is, like the 1973 charter, designed to bring about the opposite result: perpetuate the present political order in power.

A Very Powerful Incumbent

THE PROPOSED constitution may not necessarily result in a strong republic. But last-minute provisions and other revisions in various sections of the ConCom draft charter and modified by the "people's initiative" petition can only lead to a very strong "incumbent president." These provisions and revisions would give extraordinary powers to President Arroyo, among them:

Arroyo will act as both the "head of government" (the prime minister or PM) and the "head of state" (the president). The only power denied her is the power to dissolve the interim parliament. This restriction, however, is missing in the people's initiative petition.

As the president, she could wield martial-law powers merely by saying that there is an "imminent danger" of rebellion. This "imminent danger" clause was written in the Marcos 1973 Constitution but was stricken out in 1986. The late Senator Arturo Tolentino, a constitutional expert who had wanted that power removed from Marcos in 1971, had said, "I don't think it's right that the president has only to say there's an imminent danger of rebellion to suspend the writ of habeas corpus."

The Supreme Court will be stripped of the power to review requests from any citizen as to "the factual basis" of how the president uses martial-law powers.

A safeguard provision in the current constitution will be removed. This provision specifies that even if martial law is declared, it will "not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function nor automatically suspend the privilege of the writ."

Arroyo will have exclusive "supervision and direction" of the Cabinet, of which the interim PM will be a member. She "can" delegate unspecified powers to the interim PM, but only when she chooses to.

The ConCom draft gives Arroyo the power to insert one-third of her Cabinet plus 30 new members of her choice into the unicameral interim parliament. The petition allows her to include all her Cabinet members in the new parliament but has no provision allowing the president to name 30 new members to parliament. Either way, this would consolidate her hold on the entire legislature and make her virtually immune to impeachment.

Arroyo will, in effect, be able to write laws. Commissioner Raul Lambino, in the transcript of the Dec. 14 ConCom session, said that the president will exercise "limited legislative powers" based on a provision that only members of her cabinet will be allowed to propose laws of national application in the interim parliament. But in an interview, he took this back. "I categorically deny that," he said. "I strongly say there is no such provision."

Senate will be dissolved, neutralizing a current bastion of opposition to Arroyo.

Arroyo will be impervious to any attempts at removal through no-confidence votes by the interim parliament.

Arroyo, since she holds the title of president, cannot be summoned to appear before parliament during question hour — which is one of the internal checks in a regular parliament. — Raissa Espinosa-Robles



Lessons of history

"We had Marcos after 1971 for the next 14 years," says Jose Luis 'Chito' Gascon, who was a member of the 1986 Constitutional Commission and who resigned from his post as education undersecretary at the height of the presidential crisis last year. "We will probably have GMA (for longer than her term) unless we learn from history."

Arroyo, however, may have studied that chapter in the nation's history too well. Just like Marcos's ConCon, her ConCom would:

Break up into subcommittees and form a "special committee" that would insert into the draft new powers for the incumbent president;

Present these new powers at the very last minute to the rest of the body;
Suspend the rules and tell everyone to speed up approval;

Refuse to accept amendments; and

Make last-minute unauthorized insertions.

Ironically, the man many say could have dealt a serious blow to Marcos's martial rule was no other than President Arroyo's late father, former President Diosdado Macapagal, then head of the ConCon. But instead of adjourning the convention and depriving Marcos of a constitution that would legitimize his dictatorship, Macapagal decided to see the ConCon through.

Macapagal died in 1997, but in 1984 this reporter interviewed him extensively about the ConCon. He described himself as essentially helpless, "a figurehead with very limited authority." He also said, "It was not I, but the convention, which decided to continue with the sessions."

"If it were in my hands," Macapagal said, "I would have wanted to declare an indefinite recess but it could not be done under the rules of the convention against the will of the majority, especially since at that time Malacañang had already an unchallenged dominance over the Convention."

Grabbing control

Macapagal said that Marcos grabbed control of the convention by obtaining "the loyal support of certain delegates through the inducement of money, patronage, and other favors in enough number to be able to decisively influence the Convention."

He probably never foresaw that one of his daughters would later be suspected of employing similar tactics with another body tasked with charter change.

Initially, Marcos had influenced the ConCon to choose another former Philippine president, Carlos Garcia, as its head. But Garcia suddenly died three days after being elected. That led to Macapagal's being voted ConCon president — apparently through Marcos's influence. Throughout the convention's 17 months of existence, Macapagal could never shake the image that he had been "selected" instead of "elected."

His sensitivity about this was apparent to others. Delegate Antonio de Guzman later recalled that Macapagal, as convention chief, was "very careful not to alienate delegates who might otherwise move for the vacancy of his position."

Still, when the crunch came, Macapagal had an opportunity to play the hero. On Sept. 24, 1972, just a few days after Marcos declared martial law, Macapagal met with 20 delegates, among them the late Ramon Diaz, to decide what to do. Years after, Diaz would tell this reporter that the delegates decided to adjourn the convention.

Diaz recalled that Macapagal seemed reluctant to suspend the convention. "Macapagal said we would be able to withstand all pressures even during martial law," Diaz said in a 1984 interview.

Foiled game plan

Nevertheless, the delegates agreed to recess the convention and worked out a game plan. At the start of the next day's session, Macapagal, as convention president, would call on Diaz, the steering council chair, to set the day's agenda. Diaz would quickly file a motion to recess, which Macapagal would immediately approve by banging the gavel before anyone else could intervene.

That never happened. The next day, Macapagal didn't call Diaz, instead opening the floor to a debate on whether or not to recess. One of the delegates, Teofisto Guingona Jr., said Macapagal entertained so many objections "from Malacañang boys" that in the end, the motion to adjourn was voted down.

Before martial law was imposed, Macapagal had proclaimed, "I am resolved to exhaust all my remaining lights and energies to give meaning and reality to my oath as delegate and convention president to uphold the independence of the convention." Unfortunately, despite his assurances that the ConCon could continue functioning independently even under martial law, subsequent events showed who the real boss was.

Marcos was soon promising the convention delegates automatic membership in the Interim National Assembly if they approved the transitory provisions. He made the same promise to all congressmen and senators who expressed their desire, in writing, to serve in the assembly. One of those congressmen — a man from the opposition Liberal Party named Jose de Venecia Jr. — immediately signed a statement praising the "sweeping Marcos reforms, which coincided with the reformist goals of the opposition."

(Now Speaker of the House, de Venecia is among the major proponents of charter change and has made no secret of his wish to have an interim parliament by July.)

Unprecedented speed

Working with unprecedented speed, the ConCon decided on Oct. 20, 1972 to suspend the rules requiring second and third readings and immediately put Marcos's awesome powers to a vote: 264 said "yes," while only 14 had the courage to vote "no" — among them, Marcelo Fernan, the late Supreme Court chief justice, Margarito Teves, now finance secretary, and Macapagal's provincemate, Jose Suarez.

Several other ConCon delegates had been hauled to prison when martial law was declared and they refused to endorse the new charter; among them, businessman Jose Concepcion Jr., economist Alejandro Lichauco, Antonio Araneta, former vice president Teofisto Guingona Jr., and Sen. Aquilino Pimentel Jr.

Among the many who voted yes were former Supreme Court chief justice Hilario Davide Jr., Supreme Court associate justice Adolfo Azcuna, Senators Edgardo Angara and Richard Gordon, lawyer Romeo Capulong, the late senator Raul Roco and former senator Heherson Alvarez.

Floor leader Arturo Pacificador later recalled that the rules suspension was meant "to expedite proceedings" but Diaz said the actual effect was that, "nobody had a chance to restudy and reread the entire thing."

In 1984, Macapagal told this reporter that these provisions were "known to have been prepared in Malacañang." Yet he never opposed them during deliberations.

On Oct. 23, 1972, Macapagal steered the convention to suspend its rules for good and form a smaller body, the 166-man Special Committee, to draft a completely new charter. The next day, he convened the Special Committee and appointed political scientist Jose Abueva as its secretary. Macapagal would say later, "I was agreeable to the 166-man committee because in spite of my limited authority as president, I could have some say on the committee's work."

In one week, the Committee completed the entire draft of the constitution. Previously, it had taken the convention two weeks just to approve the preamble.

The special committee had divided itself into smaller committees, each of which produced a section of the overall constitution. The smaller committees were free to override and revise whatever had been discussed before. They then passed their output to a 17-man ad hoc panel, which stitched together an entire charter in the record time of four days.

Mysterious insertions

Recalling the process, ad hoc panel chair Antonio de Guzman said in a 1984 interview, "We were practically given a large latitude to exercise our own judgment with the understanding that all delegates would have a chance to present their own proposals." But the truth was the ad hoc panel accepted only a few proposals and hustled the sections to the steering council, which approved them on Oct. 30.

The rest of the ConCon saw a copy of the draft charter only on Nov. 22, when they were also told they had only eight days to approve it. Some of the delegates noticed that the transitory provisions that they had earlier approved — and which gave Marcos great powers — had mysteriously expanded from six to 15 sections. Because the convention barely had time to deliberate the entire proposed constitution, many of the provisions "were not subjected to the slightest debate," said delegate Suarez.

Many delegates later said that they were cited as authors of proposals that they were diametrically opposed to or had never made.

The prayer with which delegate Pacifico Ortiz, a Jesuit priest, opened the Nov. 25 deliberations was telling: "Dear Lord, at this juncture of our task, at this point of no return — too late to buck the headwinds towards the independence that we have lost, too soon to discern the deluge in the tailwinds that, against our choice, propel us towards an unknown undesired port — we do not know what to pray for, we simply do not know."

Despite this concern, 273 out of 320 delegates voted to approve the Marcos constitution four days later. Perhaps the reason lay in a talk Marcos had with a few convention members in Malacañang. There, he promised he would convene the interim national assembly, where all of those who voted to support his constitution would become members. "Trust me," Marcos reportedly assured them.

Records show that Macapagal did not vote. He would say in 1984 that he "merely certified to its approval by the majority" because he was "strongly against the transitory provisions." But no records from 1972 show him voicing his opposition. There is, however, a photo of him and Marcos smiling together as he handed the president a signed copy of the charter produced by the ConCon.

Delegate Antonio Tupaz would later say that Macapagal was one of the "two men (who) were silently fashioning the intricate details of suspending the rules" at the ConCon. The other man was Gilberto Duavit. In 1984, Macapagal himself identified Duavit as one of Marcos's leaders inside the convention.

Last year, Duavit was appointed by Macapagal's daughter, President Arroyo, to her 55-member ConCom.

Committees at work

Just like the ConCon, Arroyo's Consultative Commission had begun with few committees. ConCom member Vicente Paterno says that the body at first had only three committees to tackle form of government, federalism and the charter's economic provisions. He joined the first two as member and asked to co-chair the third.

"Gradually, in order to satisfy the desire of people to be chairs and officers — a very Filipino trait I'm sorry to say — other subcommittees were formed," he says. This included a special committee that Paterno says was "to put together all the transitory provisions." This same committee "told the plenary commission" of the provisions giving President Arroyo extraordinary powers "only on the day before the commission was dissolved," he says.

ConCom chairman Jose Abueva, who had acted as secretary in Marcos's ConCon, says, "We did not know (the new amendments) until we saw it in the last day…but if you are a member of the committee you know what was happening."

He says, though, that the amendments "evolved out of the debates and compromises."

"But there were some givens," says Abueva. "One given is that the President (Arroyo) was elected to a six-year term ending 2010."

Yet he also says that some of the insertions in ConCom's draft constitution were either "flukes" or "nalusutan (sneaked in)." Among the flukes was a proposal to let Arroyo appoint 30 new members to the interim Parliament.

"That was proposed I think by (Commissioner) Gerry Espina," says Abueva. "In the rush of events that was approved along with the whole proposal."

Abueva says an insertion that effectively restricts freedom of speech, press and assembly was "nalusutan." He says he learned about the provision only after civil-rights advocates complained about it.

Intended changes?

But other changes could only have been intended, such as a drastic revision of the current preamble, the opening sentence in the constitution that states the nation's aspirations for its people.

The preamble of the Arroyo administration's proposed constitution no longer has these phrases and words, which are contained in that of the 1987 charter: "rule of law," "to build a just and humane society," "a regime of truth," "freedom," and "love."

In a recent forum, University of the Philippines law professor Ibarra Gutierrez III wondered about their deletion. It was, however, not a matter of the ConCom taking them out. What Arroyo's Consultative Commissioners actually did was to bodily lift the preamble of the 1973 Marcos Constitution. The only thing they did not retain was the phrase "Divine Providence" — they changed that to "Almighty God."

(In 1984, when the Batasang Pambansa was debating Marcos's succession, Raissa Espinosa-Robles wrote a 14-part series on the Marcos constitution for the now-defunct Business Day. She interviewed key players and obtained official records of the Con Con and delegates' speeches. Diosdado Macapagal declined an interview, but typed out answers to questions from the author.)
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PART TWO
Arroyo's Charter Cahnge Moves Copied From The Marcos Books
by RAISSA ESPINOSA-ROBLES

THE ARROYO government's campaign to change the constitution seems to be following a playbook written by a dictator. His name: Ferdinand Marcos.

In 1972, Marcos manipulated, bribed and intimidated key delegates of the Constitutional Convention to grant him extraordinary powers. He dangled a promise to cancel elections the following year and struck a deal with convention delegates that those who would vote "yes" to his extraordinary powers would automatically become members of an Interim National Assembly. He then set up "citizens' assemblies" to ratify his constitution.

Last year, President Gloria Macapagal-Arroyo formed a Consultative Commission (ConCom) to draft a new charter. A handful of commissioners inserted last-minute provisions in this draft, granting President Arroyo extraordinary powers.

Some ConCom members who represented various leagues of local government officials also prodded the body to insert a section canceling the 2007 polls and giving all elected officials a bonus three-year term. In return, pro-Arroyo local officials recently convened citizens' assemblies to start a sign-up drive to ratify "substantially" the same provisions that the ConCom had proposed, giving the president extraordinary powers.

The difference is that the people's initiative is proposing even stronger powers for Arroyo than the ConCom did.

Some of those helping Arroyo push charter change are also the same ones who cooperated with Marcos more than 30 years ago, among them House Speaker Jose de Venecia Jr., ConCom chair Jose Abueva, ConCom committee on style chair Gilberto Duavit, Concom deputy floor leader Alfredo Abueg, ConCom vice chair for Mindanao Pedro Romualdo and ConCom member Gerardo Espina Sr.

ConCom member Vicente Paterno, once a member of the Marcos Cabinet, says that Arroyo is taking steps similar to those employed by Marcos to ratify the 1973 constitution. Paterno adds that Arroyo could succeed in acquiring extraordinary powers even without first imposing military rule. "It can be done," he says.

In fact, Paterno was the first to raise Marcos's name during the commission's plenary sessions last December. Reading fresh insertions in the already approved transitory provisions a day before the ConCom was dissolved, Paterno was moved to ask, "Are we going back to the Marcos regime?"

Similar insertions

Paterno noted that with the new insertions, there was now a remarkable similarity between the structure of power that Marcos fashioned for himself through the 1973 constitution, and what the ConCom proposed to hand over to President Arroyo. "I have to say it's the same," Paterno bluntly told his colleagues during the commission's Dec. 14 plenary session.

Among the new provisions were:

Immediately upon the charter's ratification, a unicameral assembly to be called an "interim parliament" would be formed.

The interim parliament will choose an interim prime minister among themselves. But the interim prime minister would be a mere member of the Cabinet of the "incumbent president" (i.e. Arroyo)

Incumbent president Arroyo will immediately wear two hats by exercising the powers of both the "head of government" (the prime minister) and the ceremonial president (head of state). The only power of the prime minister denied her is the power to dissolve parliament.

Incumbent president Arroyo will have exclusive "control and direction" of the Cabinet.

Incumbent president Arroyo can insert one-third of her Cabinet, plus 30 new members of her choosing, into the interim parliament.

Only members of her Cabinet can propose bills of national application in the interim parliament, relegating everyone else into filing local bills.

The official transcript of the Dec. 14 plenary session recorded a heated and passionate exchange among the ConCom members.

Vigorous objections

After Paterno pointed out the similarities between the new provisions and some of those in the Marcos constitution, Commissioner Pablo Garcia stood up and vigorously objected to what he said were unapproved insertions.

These were "not submitted or not found in the original committee report," protested the former Cebu governor. "These are entirely new amendments that were prepared only about a few minutes ago or an hour…inside the executive room," he said. He called what happened "cooking up provisions."

But Commissioners Romela Bengzon, Raul Lambino and Romualdo said that the amendments — introduced by Abueva and Lambino — were a "substitution or addition" to the original report of the subcommittee on transitory provisions chaired by Bengzon.

They were done "in the interest of time" and "to fast track" discussions, they said. They and other commissioners also argued that the powers given to Arroyo would be needed to "smoothen the transition" between the purely presidential into a parliamentary form.

This somewhat echoed the words uttered by the supporters of the dictatorial provisions of the 1973 constitution, who had said the extraordinary powers given to Marcos at the time were needed to "contend with any problem during the emergency situation." They had, however, carefully refrained from mentioning that the emergency had been brought about by Marcos himself, when he imposed military rule.

It had been Commissioner Bengzon who a few minutes after 5 p.m. last Dec. 14 had casually handed out copies of the insertions to her surprised colleagues. But more than three decades earlier, no less than ConCom chairman Abueva — then the ConCon secretary — had distributed copies of a draft article that listed "transitory provisions" to be included in the Marcos charter.

Marcos's moves

Those provisions were laws that would prevail while the country was transitioning from the old constitution to a new one. They proposed to make Marcos both president and prime minister of an ad interim assembly, and gave a list of formidable powers that he would wield.

Yet the very next day — Oct. 17, 1972 — Abueva was handing out a revised copy of the provisions, with a note saying this "supersedes that which we transmitted to you yesterday."

The previous document had stated that all Marcos decrees "shall remain in force and effect unless amended…by the ad interim national assembly." The new document added three ominous words, saying that whatever decrees Marcos issued would be considered "valid, legal and binding" even after martial law was lifted or the constitution was approved. Delegate Dandy Tupaz would later tell this reporter, "This came from Malacañang."

In a recent interview, Abueva denied he had a hand in helping Marcos gain dictatorial powers. He said he had merely performed a purely administrative function as the ConCon secretary. He said he had applied for the post — besting current Supreme Court Chief Justice Artemio Panganiban — because as a political scientist he wanted to witness history. But in the end, Abueva said, "I was so very, very disappointed (because) some of the provisions were made in Malacañang."

So onerous were the Marcos provisions that after the strongman was overthrown in 1986 and delegates sat down to write yet another constitution, they made it a point to specifically delete the poisonous words "valid, legal and binding" from any transitory provisions.

Same words

Last December, though, the Arroyo-appointed commissioners included these three words in their proposed charter. If their version of the constitution is implemented, those words would mean that all of Arroyo's proclamations and orders, including Proclamation 1017 that declared the entire country under a state of emergency, could be considered valid and legal.

In truth, it had not only been Paterno who thought that President Arroyo could become as powerful as Marcos had been.

During the Dec. 14 deliberations, Commissioner Angelo Abarico, a veteran editor-publisher from Davao, also pointed out, "This could be misconstrued as going back to the years of the late strongman, President Marcos, when he was both the head of state as well as the head of government. And the prime minister was a mere decorative piece."

Abueva had quickly replied that the analogy was wrong and the situations were different since that of Marcos "was never really a parliamentary system" but a dictatorship.

Paterno, unconvinced, told his colleagues: "There is no distinction between this arrangement and the Marcos structure. I am looking for a way by which I can tell the people, 'No, this is different.'"

Paterno and other commissioners noted that the ConCom draft charter was actually proposing two very different power structures: one for during the interim parliament headed by Arroyo, and another for the regular parliament.

During the transition, Arroyo would retain her title as president but be more powerful than the interim premier. After the transition, the prime minister would become the more powerful figure, relegating the president to mainly ceremonial functions.

Extraordinary powers

Lambino conceded to Paterno that he could think of "no parliamentary government that had that kind of power" Arroyo would have during the transition period. To which Paterno said, "Then why call it a parliamentary government?"

Lambino replied, "Because we are now in the interim period. After 2010, there shall now be separation between the powers under the head of state and the head of government."

Paterno then asked worriedly how the Arroyo transition period "will be different from the Marcos government except for the martial law powers." Lambino gave the assurance that Arroyo would exercise only powers provided by the newly proposed charter. As he saw it, she would be unlike Marcos, who not only retained the presidential powers stipulated by the 1935 Constitution, but also enjoyed the new ones granted by 1973 charter to the president and prime minister.

Yet earlier that day, Bengzon had told colleagues that during the transition, "the president still retains her power as president in the 1987 Constitution with no diminution thereof."

Paterno suggested that they at least make the interim prime minister the "administrative head" of the Cabinet. But Abueva, Lambino, Bengzon and Abueg refused the amendment. Put to a viva voce vote, Paterno's suggestion was defeated.

The only change the four ConCom officers grudgingly accepted was to place the Cabinet under Arroyo's "direction and supervision," instead of under her "control and supervision."

Since the hour was getting late, Commissioner Oscar Rodriguez, mayor of San Fernando, Pampanga, moved to suspend ConCom rules requiring the printing of a clean copy of the proposals before final approval. He obtained ConCom's consent through a viva voce vote.

ConCom floor leader Sergio Apostol, a former congressman, then moved to approve all the amendments on third and final reading. Nineteen members raised their hands in agreement; eight said "no."

Fast-tracked amendments

Even if only 27 or less than half the 55-member commission had voted, many being absent, the motion was carried. The body then adjourned. It was 9:37 p.m. of Dec. 14; it had taken the commission less than five hours to approve Arroyo's extraordinary powers.

The ConCom draft remains the mother document for the ongoing people's initiative. But the initiative is pushing for even more powers for Arroyo.

Concom had wanted the interim parliament to have a free hand in electing the interim prime minister from among its members. The people's initiative wants Arroyo to nominate the premier who will then be elected by his or her peers.

This is to avoid gridlock and ensure "a three-year period of harmony and unity among our top leaders," Lambino said in an interview.

Concom had placed a cap of one-third of the Arroyo Cabinet that could become members of the interim Parliament. The people's initiative removes that cap and says "incumbent members of the Cabinet who are heads of executive departments" will all be in parliament.

Lambino adds that even if Arroyo fires a Cabinet member, "it does not follow he will cease to be a member of parliament."

The people's initiative has also embraced Commissioner Bengzon's view, not Lambino's, regarding the breadth of the incumbent president's power during the transition period. The attachment to the initiative's petition to the Commission on Elections proposes that "the incumbent President and Vice President…continue to exercise their powers under the 1987 Constitution" upon ratification of the new charter.


Part Three
As in 1973, the Balls is in the Supreme Court
by RAISSA ESPINOSA-ROBLES

THE FATE of present efforts to change the constitution now lies in the hands of the Supreme Court — much like how it was in 1973.

Back then, President Ferdinand Marcos managed to get the highest court of the land to endorse what was an anomalous ratification of a new charter he had tailor-made to suit his needs.

Today, with the Arroyo administration seemingly following Marcos's playbook page by page, those against charter change are wary on how the Panganiban Court would act once the matter arrives at its doorstep.

Political scientist Jose Abueva, secretary of the Constitutional Convention (ConCon) that produced the 1973 charter and who was appointed chairman of the Arroyo administration's Consultative Commission (ConCom) on charter change last year, makes no bones about what he expects to happen.

"My hope," he says, "is that in the event of a clear majority, an impressive number (signs the petitions asking for charter change), the Supreme Court would accept that as the people's choice."

That implies that even if the charter-change (cha-cha) petitioners fail to gather the required three percent of the registered voters per district, Abueva hopes the high tribunal will still endorse cha-cha.

Cha-Cha to get Gloria out

Last December, President Gloria Macapagal Arroyo formed the ConCom, which produced a draft constitution that would have her enjoying expanded clout. But trips taken by ConCom members around the country had revealed that people wanted cha-cha if only as a means of getting rid of the current administration.

According to official transcripts of ConCom sessions, member Emily Marohombsar said that although they weren't asked, "the people brought it up, they said that 'we support charter change because we believe it would mean also a change in the regime.'"

Malacañang officials say the Palace had no hand in the draft document. In March, "citizens' assemblies" were formed to secure millions of signatures for a "people's initiative" to grant Arroyo even stronger powers than those proposed by the commission.

The initiative's supporters say they will produce over 22 million signatures, which would exceed half the number of current registered voters, now at 43.5 million.

ConCom member Raul Lambino says, "I cannot stop them, they are still gathering more signatures. In fact when I talked to some governors they would like to get more than the 50 percent…to show all opposition groups that there is really a strong clamor for constitutional reforms."

After that, the plan is to ask the Commission on Elections (Comelec) to authenticate these signatures. The next step, some observers fear, is that Arroyo would — as Marcos did more than 30 years ago, after his own citizens' assemblies "overwhelmingly ratified" the 1973 constitution — issue a proclamation saying the people have spoken and that their decision must be respected even by the Supreme Court since sovereignty resides in the people.

Expressions of the people's will

Abueva himself says that the Supreme Court has already twice affirmed unconventional means of expressing the popular will. In 1986, he notes, it validated the "People Power" expressed by only around a million people massing along Edsa — a fraction of the total number of registered voters.

In 2001, he adds, the high court favorably viewed a similar demonstration of "people power" and judged it as "a valid exercise of popular sovereignty."

Abueva points out how, in 2001, "they (Supreme Court justices) even had to invent a doctrine called constructive resignation."

Still, there are those like Fr. Joaquin Bernas, S.J., a constitutional law expert and one of those who had helped frame the 1987 charter, who say the current Supreme Court may yet pull a surprise — at least for those who want to change the constitution.

In a forum last week, Bernas pointed to two recent rulings issued by the Panganiban Court that he says shows that "the justices are conscious of their own place in history."

On Apr. 20, the Court partially voided Executive Order 464 that had clipped the powers of Congress to summon government officials to its inquiries. A few days later, the Court followed that up with an opinion on the so-called "calibrated preemptive response" of the government regarding rallies; according to the Court, the policy had no place in the country's "legal firmament."

These rulings have made Bernas optimistic that there would be no revision of the constitution this year. But if such a revision "comes through," he says, "it would only mean that the Supreme Court will have approved initiative and referendum for revision."

"We can give up on the Supreme Court if that happens," he said.

Eagle eyes

Those who are already cynical about the Court, however, are keeping a careful eye on just how close the Arroyo administration comes in copying steps taken by the Marcos government in 1973.

Initially, Marcos had scheduled a plebiscite to meet the requirements of the constitution for a valid ratification. But he suddenly postponed the plebiscite a week before it was to take place. Instead he directed his citizens' assemblies to conduct a referendum "on important national issues."

Ten suits were filed before the Supreme Court to stop or void this highly doubtful manner of ratifying a charter — where in some cases, people were asked to raise their hands if they were hungry and these were counted as the votes.

But the Supreme Court dismissed all the cases in a ruling dated Mar. 31, 1973, after Chief Justice Roberto Concepcion received a copy of Marcos's Proclamation No 1102. According to the proclamation, the citizens' assemblies had met and they had allegedly asked Marcos to consider their approval as the ratification; not to convene the interim national assembly; postpone elections, and lastly, to continue martial law.

Javellana v. the Executive Secretary, nailed the coffin shut on democracy. The Supreme Court said that even if the constitution had not been ratified by a body or agency "not duly authorized" by the constitution, the court could no longer inquire into the validity of the ratification because people had already accepted and obeyed its laws and the government was already operating under it.

Asked about the Javellana ruling, ConCom member Lambino said it is not relevant to the current people's initiative. This is because, he said, a plebiscite was sure to follow the initiative, complete with an official ballot, printed and administered by the Comelec.

What's a plebiscite?

But former ConCom member Vicente Paterno, who resigned from the body last December, in effect disowning the draft charter he helped craft, remains jittery. He says one loophole that charter-change advocates can take advantage of is the fact that the present constitution does not define what a plebiscite is.

"It will have to be a Supreme Court interpretation of what a plebiscite is," says Paterno, who chose to leave the ConCom after last-minute provisions giving President Arroyo vast powers made their way into the draft constitution. "Is it a written vote or a referendum like what Marcos did in the citizens' assemblies with a show of hands?"

Bernas, for his part, reminded the audience at a forum last week that a 1997 Supreme Court decision says there must first be an "enabling law" before a "people's initiative" could be used to amend the constitution. He also stressed that any "initiative" or referendum may be used to introduce only amendments to the charter, and not revisions.

"For the simple reason of practicality," said Bernas. "When you want to make major changes, there are a lot of things you have to debate upon. You can't expect a mass of people, unorganized, to debate on these."

Paterno, however, believes that the government is hell-bent on pushing through with charter change any way it can. He even says that the appointment of former Marcos and Estrada official Ronaldo Puno to the strategic post of local governments chief was proof that "GMA will leave no stone unturned for Cha-cha (charter change)."

Indeed, it now appears that certain members of the 55-member ConCom were chosen primarily because they headed organizations that could be used to harness support for charter change.

Generating "support"

Recently, a print advertisement boasted that "influential business organizations, major labor and civil-society groups, and all the leagues of local officials nationwide have joined in this chorus for change!" It then listed as "joiners" the Philippine Chamber of Commerce and Industry headed by Donald Dee; the Filipino-Chinese Chambers of Commerce and Industry led by Francis Chua; Trade Union Congress of the Philippines led by Democrito Mendoza: the Philippine Council of Evangelical Churches headed by Bishops Efraim Tendero and Federico Magbanua.

What the ad failed to mention was that except for Magbanua, all the named individuals were ConCom members.

The ad also made it appear that the various leagues of governors, city and town mayors, and councilors joined the charter-change movement only recently. These organizations, however, were represented in the ConCom by Dagupan City Vice Mayor Alipio Fernandez, Calbayog City Mayor Mel Senen Sarmiento and Biliran Mayor Gerardo Espina Sr.

Lambino says that these local officials "were invited to become members of ConCom so that they can give the input coming from their constituents."

Official transcripts of ConCom sessions, however, reveal that some commissioners were not really that interested in getting input from the public. During the contentious debates on Dec. 13 and 14, the ConCom was divided over a proposal to cancel next year's elections should the draft charter be approved. Some commissioners had objected, arguing that this was not what the people wanted.

"In our regional consultations, the voice of the people was very clear," said Commissioner Rita Jimeno, former president of the Philippine Bar Association. "They want change and they want it now. In fact, they were saying that they want the present politicians not to run anymore and to ban them from office."


Debating 'No-El'

Apparently, though, the "no election" clause was a needed enticement for local officials to support charter change, since it would give them an extra three years in office. Commissioner Romela Bengzon made that clear in her response to her upset colleagues, saying that she was more concerned about getting support from the politicians than from the people.

She said that "the people that we are (talking about) here we can't even count. Okay? I'm sure." By contrast, she said, "the people that the local authorities who have promised to market this is measurable — it's tested. They have the machinery."

Two rounds of votes took place over the "no election" clause; the first had those for holding the polls winning 18 to 16, while the second gave the victory to the no-election supporters at 22 to 19. The ConCom eventually transmitted both results to President Arroyo, but the draft constitution carries the "no election" clause.

As Commissioner Pedro Romualdo, who was also a delegate to the 1971 ConCon, said during the debates, "If you want our work, which you believe would be for the benefit of our country, never mind the people, country." — with additional reporting by Vinia Datinguinoo